EDITORIAL: Privacy trumps need for cellphone surveillance

How private are your telephone conversations? It depends on what kind of phone you’re using. That’s a problem.

In Katz v. U.S., the 1967 “bookie in a phone booth” case, the Supreme Court ruled that no matter where a conversation occurs, it is protected from unreasonable search and seizure because of a “reasonable expectation of privacy.”

And there’s another law on the books — the 1986 Electronic Communications Privacy Act (ECPA) that regulates the government’s monitoring of digital communications. Law enforcement cannot, under normal circumstances, legally eavesdrop on cellphone conversations. But there’s nothing to keep law enforcement from tracking your cellphone use.

Then there is also the 2001 Patriot Act, under which the FBI and the National Security Agency can subpoena cellphone records without a warrant and monitor cellphone conversations. The Patriot Act also makes it illegal for a cellphone company to publicly disclose that phone records are being investigated.

So which law covers cellphones and respects the individual’s reasonable expectation of privacy now that cellphones are ubiquitous in our daily lives?

That has yet to be determined.

“The law is totally unclear,” said Catherine Crump, a staff attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project. “Even though we’ve all been carrying our cellphones around with us everywhere for the past decade, the law is totally out of date with respect to protecting our privacy.”

“We’ve all” isn’t hyperbole. A 2010 study by the Pew Institute found that 85 percent of adults in the United States own a cellphone. Other studies show that most people think the information stored on their cellphones is at least as private as that stored on their home computers.

“We need to be able to rely on the privacy of our cellphones and our emails the way we can rely on the privacy of our living rooms and our letters,” said Neil Richards, a Washington University law professor. He is an author and internationally recognized expert on privacy, the First Amendment and information law.

That’s not the case now, Mr. Richards noted, adding that our best protection at this point is what is found in the 1986 ECPA law.

The debate over how to handle cellphone information is raging, with judges and lawmakers around the country tussling over whether law enforcement officers need search warrants to mine the vast trove of information that is available.

Sen. Patrick Leahy, D-Vt., chair of the Senate Judiciary Committee and an architect of the ECPA law, is trying to remodel the law. On Thursday, Mr. Leahy’s committee approved a bill that would strengthen privacy protection for email. The bill has been opposed by law enforcement officials who increasingly have used information from electronic devices as investigative tools.

First Amendment advocates, such as the ACLU, say we can’t wait for the courts. They want lawmakers to begin weighing in on the matter.

A three-judge panel of the 6th Circuit Court of Appeals sent chills through privacy advocates with a ruling in August that grew from a warrantless search based on GPS data that the judges said apparently was obtained with help from a phone company.

The judges’ said the defendant’s rights were not violated because he “did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cellphone.”

Ms. Crump said warrantless cellphone searches are a threat to our privacy that should be legislated out of existence.

“The content of someone’s phone can reveal deeply private and sensitive information that has traditionally been safeguarded by the warrant process,” Ms. Crump said.

The courts are unable to keep up with new technology, she added, citing the “bookie in a phone booth” case in 1967. Telephones came into common use in the 1930s, but it took decades for the law to rule that warrants were necessary to listen in on telephone conversations.

U.S. Rep. Edward Markey, D-Mass., has been pushing legislation that would increase oversight on the increasing number of requests that wireless carriers get from law enforcement agencies for customers’ phone records.

Mr. Markey released a study in July of data from nine wireless carriers that revealed that they had received more than 1.3 million requests for cellphone records last year. The carriers said they release information only when ordered by subpoena or if law enforcement officials certify there is an emergency involving the danger of death or serious physical injury.

Right now there’s no guarantee of cellphone privacy. Mr. Richards said the importance of electronic technology in our lives can’t be overstated, and the need to keep that information private is paramount.

“We’re witnessing a social revolution that’s as meaningful and on par with the industrial revolution with the changes it will make in our society,” he said. Surveillance, or the mere threat of surveillance, he said, is a tactic used by tyrants and has no place in the United States.

In an article for the Texas Law Review, Mr. Richards described intellectual privacy as the protection of records of our intellectual activities, and said it is “vital to a robust culture of free expression, as it safeguards the integrity of our intellectual activities.”

He argued that free speech depends on free thought, and “without free thought, the freedom to think for ourselves, to entertain ideas that others might find ridiculous or offensive, we would lack the ability to reason, much less the capacity to develop revolutionary or heretical ideas about (for instance) politics, culture, or religion,” he wrote. “Engaging in these processes requires a space, physical and psychological, where we can think for ourselves without others watching or judging. Those thoughts are precious and need to be protected against intrusion.”

When law enforcement authorities seek warrants for other kinds of searches, including phone taps, they must convince a judge that there’s probable cause that a crime is being committed. That’s not the case with cellphone records.